Supreme Court of Ireland Decisions

AN CHÚIRT UACHTARACH

THE SUPREME COURT

S:AP:IE:2019:000222

[2022] IESC 000

MacMenamin J

Dunne J

Charleton J

Baker J

Hogan J

Between/

MINISTER FOR JUSTICE AND EQUALITY

Applicant/Respondent

- and -

SLAWOMIR WIKTUR PALONKA

Respondent/Appellant

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 8th day of February, 2022

1.                  I agree with the judgment of Charleton J. that surrender should be refused in the present case. It is true, of course, that the entire European Arrest Warrant (“EAW”) system is built on the principles of full faith and credit, together with the mutual trust which is essential for the operation of EU law.  As the Court of Justice of the European Union put it in Aranyosi and Caldararu (C-404/15, EU: C: 2016: 198) (at paragraph 76):

“The Framework Decision thus seeks, by the establishment of a new simplified and more effective system for the surrender of persons convicted or suspected of having infringed criminal law, to facilitate and accelerate judicial cooperation with a view to contributing to the objective set for the European Union to become an area of freedom, security and justice, founded on the high level of confidence which should exist between the Member States.”

2.                  Where the conditions for surrender have otherwise been satisfied, then, as the Court of Justice has repeatedly made clear in cases such as Aranyosi and Caldararu (C-404/15, EU: C: 2016: 198), surrender may be refused only in either the circumstances specified in Article 3 (mandatory) or Article 4 and Article 4a (discretionary) of the Framework Decision itself. Side by side with this, however, the Court of Justice acknowledged in that case (at paragraphs 82 and 83 of Aranyosi and Caldararu)  that “limitations of the principles of mutual recognition and mutual trust between Member States can be made ‘in exceptional circumstances’ (see, to that effect, Opinion 2/13, (Avis 2/13, EU: C: 2014: 2524 , paragraph 191).” The Framework Decision is, moreover, “not to have the effect of modifying the obligation to respect fundamental rights as enshrined in, inter alia, the Charter.”

3.                  The facts here are, however, quite exceptional. Viewed objectively, the delay of 23 years between conviction and surrender is in itself inordinate and the reasons for any such delay would need to be excused. I feel bound to say that no adequate explanation has been offered in respect of such a delay and, moreover, the approach of the Polish authorities displays a lack of coherence and consistency. In expressing this view, I quite appreciate the fact that, unlike in this country, there is no central authority for EAW matters in Poland. While the organisation of EAW requests is naturally a matter for each Member State, they nonetheless cannot be heard to complain if a multiplicity of requests emanating from different courts and judicial authorities at different times are apt to cause procedural confusion and delay.

4.                  Consider the facts of the present case. Mr. Palonka was charged with two separate offences of importing cannabis in July 1999 and in March 2003 respectively. The July 1999 offence resulted in a suspended sentence having been imposed in August 2002, but this sentence was subsequently activated by the Regional Court in Hrubieszów on 16th January 2006. This re-activation of the sentence was in response to Mr. Palonka’s subsequent conviction in respect of the 2003 offence which was, again, for cannabis importation. It does not appear that Mr. Palonka was present for this January 2006 hearing because he had already moved to Ireland in November 2005.

5.                  This second conviction had been imposed by the District Court in Nowy Tomsyl on 30^th June 2003 in respect of the 2003 offence. In strictness, that Court had imposed two separate sentences of six months imprisonment each in respect of the cannabis importation on 23 March 2003. On appeal to the Regional Court in Poznan that Court took the view that there had in reality been only one offence and the original aggregate sentence of twelve months imprisonment was then reduced on appeal to a single period of ten months’ imprisonment by order of that Court on 29 January 2004. It was this offence which was the subject of the EAW of 6 March 2006.

6.                  As Charleton J explains in his judgment, there was then a delay of some 6 years from 2006 while the Polish police sought the whereabouts of Mr. Palonka. The Regional Court had been informed in the meantime that an EAW warrant had been issued by the District Court in Poznan on 6 March 2006 in respect of the 2003 offence. It turned out, however, that, for various reasons, this warrant had never been executed. It had, however, been transmitted to the Irish authorities who, by letter dated 17^th October 2012, had requested that it be amended to take account of changes to the form of the warrant which had been specified in the amended Council Framework Decision 2009/299/JHA.

7.                  The Regional Court in Hrubieszów then discovered in November 2012 that Mr. Palonka was residing in Ireland. It nonetheless declined to issue a fresh EAW in respect of the 1999 offence because it had been advised that another EAW had just then been issued on the same day by the District Court in Poznań  in respect of the 2003 offence. The Regional Court took this view because it reasoned that if Mr. Palonka was surrendered on foot of the 2006 warrant for the 2003 offence (which had issued by the District Court in Poznań), it would then be possible by virtue of Polish law to execute the activated sentence in respect of the 1999 offence should Mr. Palonka consent to this. Ultimately, however, this never came to pass because the surrender of Mr. Palonka which had been requested by virtue of the 2012 EAW in respect of the 2003 offence by the District Court in Poznań  was refused by the Court of Appeal in May 2015 on the ground that the request did not contain the information specified by s. 45 of the European Arrest Warrant Act 2003: see Minister for Justice and Equality v. Palonka [2015] IECA 69

8.                  On 26th March 2018, the Regional Court in Hrubieszów received a copy of the (unexecuted) 2006 EAW warrant but it seems that it was not aware of, and did not have a copy of, the 2012 EAW warrant. The Regional Court in Hrubieszów has stated in response to a query from this Court that it was not aware of the arrest of Mr. Palonka in Ireland until it was informed by letter dated 27th March 2018 by the Regional Police that he had been arrested and detained on foot of an EAW and that he had lodged an appeal against his surrender and that his surrender from Ireland to Poland was ultimately refused. (This was a reference to the proceedings which resulted in the judgment of the Court of Appeal in May 2015 in respect of the 2012 EAW for the 2003 offence). The Regional Court in Hrubieszów indicated that it was not aware that the Mr. Palonka’s detention in Ireland was on foot of the 2012 EAW as distinct - presumably - from the unexecuted 2006 EAW.

9.                  It is not disputed but that the Polish police were responsible in respect of all endeavours to discover Mr. Palonka’s whereabouts. As it happens Mr. Palonka was arrested in Ireland on foot of the 2012 EAW on 28th December 2013 but the Regional Court in Hrubieszów has stated that it was not aware of this fact until 27th March 2018. At all events on 15th June 2018 the Regional Police then applied to the Regional Court in Hrubieszów for the issue of yet another EAW in respect of the sentence which had been activated by order of that Court on 16th January 2006. This sentence was, as we have already noted, in respect of the 1999 offence.

10.              Again, collating and arranging the requisite information in respect of such an old offence appears to have taken some time. When all the necessary information and documents were collected the Regional Court in Hrubieszów then filed a request with the District Court in Zamość to issue another fresh EAW. This EAW issued on 23rd January 2019 and it is this EAW which, in turn, has given rise to the present proceedings.

11.              It is perfectly evident that each stage of the Polish judicial process and police investigations was beset by some degree of delay and confusion. I am perfectly prepared to accept that this unhappy sequence of events was caused by a series of understandable human errors. The net result, however, is that this Court is faced with executing an EAW warrant in respect of a (relatively) minor offence which was committed by Mr. Palonka some 23 years ago when he was just 18 years of age. The confusion of which I have spoken has meant that the Polish authorities did not avail of a number of  opportunities to apply for an EAW in respect of this offence prior to making a belated application in this regard in 2019. Had the Polish authorities acted otherwise it would have been entirely possible for them to have sought to have an EAW executed in either 2006 or 2007. Alternatively, one or more EAWs in respect of both the 1999 offence and the 2003 offence could have been processed by the Irish courts at the same time in 2012 and 2013 had the Polish authorities considered such an approach to have been appropriate.

12.              These lost opportunities did not, moreover, occur due to mere happenstance. While it may have been understandable for the Regional Court in Hrubieszów to elect not to seek an EAW in respect of the 1999 offence in November 2012 on the ground that the District Court in Poznań  had just issued an EAW in respect of the 2003 offence, this course of action hinged on a successful outcome of that particular EAW request. What, for example, did the Regional Court propose to do if (as ultimately happened) surrender was refused in respect of that particular EAW? Even if surrender had been directed by the Irish courts in respect of that offence, the Regional Court would still have been precluded from dealing with the 1999 offence unless Mr. Palonka consented to this. Again, one may ask, what would have happened if Mr. Palonka had not given his consent?

13.              What has happened instead is that a series of mishaps has resulted in the matter being processed in a disjointed and piecemeal fashion, resulting in long and inordinate delays. All of this is prejudicial to the administration of justice. It is certainly unfair to Mr. Palonka that these delays and multiplicity of EAW applications should be visited upon him.

14.              In many respects the decision of the Court in Minister for Justice and Equality v. JAT (No.2) [2016] IESC 17, [2016] 2 ILRM 262 provides perhaps the closest analogue to the present case. That was a case where the original EAW requesting surrender in respect of a major tax fraud proved to be defective and the defendant was then faced with a second EAW application, albeit for the same offence.  The delay was, however, inordinate in that it concerned an offence committed some nineteen years previously. This fact coupled with other considerations such as the multiplicity of proceedings, the lack of explanation for the delay and considerations to the defendant (he was the principal carer for his son) all led this Court to conclude that the case was, on balance, sufficiently exceptional to warrant a decision refusing surrender.

Conclusions

15.              For my part, I think that the present case is not dissimilar. The delay is even longer and while the Polish authorities have endeavoured to explain this sequence of events, I confess that I cannot say that these delays and the repeated applications have been sufficiently excused. In contrast, moreover, to JAT (No.2) - which concerned a large scale Revenue fraud - the 1999 offence in the present case was a relatively minor first time offence committed by a young adult. And while Mr. Palonka’s personal circumstances are in many ways no different from those of many who vainly invoke family considerations in an endeavour to resist EAW applications, one cannot nonetheless overlook the fact that he has settled here with his family since 2005.

16.              While this case may, like JAT (No.2), be regarded as a marginal one, the combination nevertheless of a series of errors, confusion, repeated applications, deliberate choices and inordinate delay all nonetheless serve to persuade me that the present case should be regarded as an exceptional one within the meaning of Aranyosi and Caldararu such that this Court should refuse to execute this particular EAW application and refuse to make an order for surrender.

17.              It is for these reasons that I agree with the judgment of Charleton J to the effect that an order for surrender of Mr. Palonka to the Republic of Poland in respect of this EAW should be refused.

Result:     ALLOW (see Judgment Summary)